Fire assessment hearing continued Tuesday

October 9, 2013

Testimony continued for a second day Tuesday at Lee County Courthouse in Fort Myers during the bond validation hearing for the city of Cape Coral's controversial fire service assessment.

And after the day-long proceedings, the hearing was again continued, set to resume for a third day at 9 a.m. Wednesday.

At stake is the city's ability to impose on Cape Coral taxpayers a new assessment for fire operations using a method that has not been seriously challenged in court until now.

The city, which sought the legal clarification, is the plaintiff.

The defendants, or challengers, are any and all affected Cape property owners. And dozens have shown up, most on the first day on Monday.

It began again Tuesday with attorneys requesting a 30- to 60-day continuance, and included heated testimony between defense cross-examiners and Cape Coral Fire Chief Tim Hayes and consultant Michael Burton regarding what the new assessment is intended to cover, the number of non-fire related calls the department gets, and the apportionment of the "two-tier methodology" by which property owners will be assessed. It ended with one city council member making claims that a fellow council member broke Sunshine Laws in reference to the FSA.

Attorney Scott Morris and much of the defense contingent requested a continuance on the grounds of them thinking it would be a one-hour hearing and not a full-blown examination allowing for cross-examination.

"We should have an even playing field and have the opportunity to bring in our experts," Morris said.

Judge Keith Kyle denied the motion as the hearing date was a matter of record.

Hayes was called to the stand and testified for the rest of the morning about the assessment, with seven individuals cross-examing him, including Councilmember Chris Chulakes-Leetz and Mayor John Sullivan, both of whom had opposed the assessment.

Attorney Richard Cudla questioned Hayes' experience in handling special assessments, which he did while working in Gainesville, as well as his knowledge of the city's "ready-to-serve" methodology, which led to testy exchanges at times.

He also questioned why 83 percent of all calls were non-fire related.

Hayes said much of what the department does is fire related. Those things include a person trapped in a home or if they need to ladder to get to someone.

In the afternoon, Burton of Burton & Associates, which played a major part in suggesting the methodology, was grilled on whether he had considered the legality of the assessment and the fact that it was not approved by a unanimous vote.

Chulakes-Leetz asked if he ever held the promised 14 public forums to explain the financial diversification plan of which the fire assessment is a part.

"Weren't those to be completed so the public would be informed? As a consultant did you do all within your power to be sure the public knew?" Chulakes-Leetz asked.

Burton said he did.

He also explained to everyone what the two-tiered, ready-to-serve method would work, with the first tier for set costs and assessed by a flat fee to be paid by all. The second tier is to be charged by the assessed value of the structure.

He also said the alternative to the assessment was to do nothing and have the city run out of money in two years.

"We either had to cut costs dramatically because revenues wouldn't support us, or look for other revenue streams," Burton said. "We would have run out of reserves in 2016."

When it came time for defense to make its argument, Chulakes-Leetz took the stand and made the accusation that members of the council had broken Sunshine Laws prohibiting council members from talking about city issues outside the dais.

He said he became concerned when Councilmember Derrick Donnell made a remark during the Aug. 19 council meeting that he "knew" how the others would vote.

"You could hear him state 'I know how you'll vote,'" Chulakes-Leetz said. "It shocked me when I heard that."

It was hoped the hearing would end Tuesday, but the clock ran out after Mayor John Sullivan and Councilmember Lenny Nesta took the stand, Sullivan for the defense, Nesta for the city.

Chulakes-Leetz, when asked how he thought his side was doing, he said no matter what, the citizens will turn out to be the losers.

"This isn't like a football game. It's either we lose or we lose," Chulakes-Leetz said.